Top Section 101 Patent Eligibility Stories of 2024

It's that time of the year again – the time to snuggle up by the fire, put on Dominick the Donkey and read this year's Top Section 101 Patent Eligibility Stories.

But first, the holiday movies and where they're streaming:

• Netflix. "Feast of the Seven Fishes." I'm upgrading this from a "recommendation" to a "pound the table." I'm biased because the Feast is something my family does, but this movie has lots of heart. (Here's a proposed Feast coursing.) "Klaus" is also great. "Hot Frosty" and "Our Little Secret"? Nope. I haven't seen them despite what my Netflix history says.
• Hulu. "National Lampoon's Christmas Vacation" and "Elf" are both background movies for me, but they are necessary additions. I'm avoiding "The Polar Express" (2004) this year. It is really not for me.
• Amazon Prime. Two big ones here – "Love Actually" and "The Holiday." I'll say it: "The Holiday" is the superior movie. There's also a third big one: "Die Hard." I almost forgot.
• Disney. "Home Alone" and "Miracle on 34th Street" are the top ones here. Oh, what am I saying? "The Santa Clause" is the masterpiece.
• Pluto. We downloaded Pluto solely to watch "The Snowman"(1982). You probably didn't know you needed a David Bowie intro to your Christmas movies.

The Section 101 Stories

No. 3: Artificial Intelligence Enters the Chat

Artificial intelligence (AI) has dominated headlines since 2023, so it is not surprising that AI is creeping into the patent eligibility conversation. Most notably, the U.S. Patent and Trademark Office (USPTO) issued updated guidance on AI as it relates to patent eligibility.

As we discussed in August, the guidance reiterates some of what we already know – e.g., AI claims cannot be mere data processing claims but must include additional inventive elements. But as is often the case, the most interesting guidance comes from the USPTO's analysis of the sample claims.

And here is your reminder to be careful with how and when you use AI.

No. 2: Patent Eligibility – We Carry On

With all of the hullabaloo about patent eligibility reform and the U.S. Supreme Court, plus the influx of opinion pieces, parties continue to litigate and courts continue to make eligibility decisions. Unified Patents' Patent Dispute Report from earlier this year showed an "upward trend" with nonpracticing entity (NPE) filings increasing significantly over 2023. And with these disputes come patent eligibility decisions.

Unfortunately (or fortunately), there were no major decisions that kept us glued to any particular docket. I am thinking of a case such as American Axle; I probably wrote five posts on that case years ago. But even without a crucial decision, there were still decisions to consider.

The Contour IP v. GoPro case provided insight into the level of detail the U.S. Court of Appeals for the Federal Circuit looks for in determining whether claims are directed to a specific technological improvement. There, the court found that the patents' specifications disclosed "improving POV camera technology through specific means of generating high- and low-quality video streams in parallel … and the claims reflect this improvement."

That same month, the Federal Circuit reminded us that we must actually raise our defenses. The court emphasized the "party presentation principle" in vacating and remanding a sua sponte ruling that certain patents were ineligible under Section 101.

This blog also covered claims to high-yield enzymatic production of stevia compound being held as invalid as an abstract idea, claims directed to an electronic gaming system being affirmed as ineligible and much more.

No. 1: Patent Reform – Maybe? Maybe Not?

The Senate held a hearing in January to consider the Patent Eligibility Restoration Act (PERA). Numerous witnesses supported the legislation (sometimes with some tweaks), and a few opposed the act. In September, Reps. Kevin Kiley (R-Calif.) and Scott Peters (D-Calif.) introduced a House companion to PERA.

In November in two separate meetings, the U.S. Senate Judiciary Subcommittee on Intellectual Property advanced the Inventor Diversity for Economic Advancement (IDEA) Act and the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act. Though the subcommittee took no action on PERA at those meetings, Sens. Chris Coons (D-Del.) and Thom Tillis (R-N.C.) stated they were still receiving feedback and expressed optimism that PERA would move forward. This won't surprise you, but people have many strong opinions on PERA and eligibility reform generally.

So, will we see PERA become law? I will give a tepid yes, but obviously not until the new Congress finds its footing.

Note that I am not addressing the petitions to the Supreme Court. I could be wrong, but the Supreme Court is not going to address Section 101 patent eligibility anytime soon, at least not with the current justices.

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Comments on patent eligibility – or my taste in holiday movies? Send me an email.

Happy holidays, and let's catch up in 2025!